December 19, 2012

Ethics restrictions so strict they undermine democracy

The readers of this blog know that legal ethics rules that are too strict can undermine access to justice. Just recall minimum price schedules and bans on lawyer advertising.

Government ethics rules can be so strict that they undermine democracy.

One example of a too-strict ethics rule is the federal Hatch Act.

The Hatch Act prohibits government employees from engaging in partisan political activity in government offices. That part of the statute actually promotes equality and even-handedness among government officials. No problem there.

But another part of the Hatch Act has prohibited federal and District of Columbia employees from running for partisan political office.

The statute carved out exceptions for employees who lived in Virginia and Maryland suburbs of Washington, DC, but not for those who lived in the District of Columbia.

This part of the Hatch Act -- the prohibition on running for partisan political office -- has functioned as an incumbent-protection device for the District's Mayor and Councilmembers. It prohibited all other District officials (except the Recorder of Deeds) from running for Mayor or Council.

The folks who are in the best position to oppose incumbent Councilmembers or an incumbent Mayor are lower-level elected officials: Advisory Neighborhood Commissioners and members of the State Board of Education. The Hatch Act prohibited these elected officials from running for higher office.

Today, Congress passed the Hatch Act Modernization Act, which will treat the District like other states and municipalities, enabling District officials to run for Mayor and Council. This has the potential to increase the competition for these elected posts and increase the quality of officeholders.

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The readers of this blog know that legal ethics rules that are too strict can undermine access to justice. Just recall minimum price schedules and bans on lawyer advertising.

Government ethics rules can be so strict that they undermine democracy.

One example of a too-strict ethics rule is the federal Hatch Act.

The Hatch Act prohibits government employees from engaging in partisan political activity in government offices. That part of the statute actually promotes equality and even-handedness among government officials. No problem there.

But another part of the Hatch Act has prohibited federal and District of Columbia employees from running for partisan political office.

The statute carved out exceptions for employees who lived in Virginia and Maryland suburbs of Washington, DC, but not for those who lived in the District of Columbia.

This part of the Hatch Act -- the prohibition on running for partisan political office -- has functioned as an incumbent-protection device for the District's Mayor and Councilmembers. It prohibited all other District officials (except the Recorder of Deeds) from running for Mayor or Council.

The folks who are in the best position to oppose incumbent Councilmembers or an incumbent Mayor are lower-level elected officials: Advisory Neighborhood Commissioners and members of the State Board of Education. The Hatch Act prohibited these elected officials from running for higher office.

Today, Congress passed the Hatch Act Modernization Act, which will treat the District like other states and municipalities, enabling District officials to run for Mayor and Council. This has the potential to increase the competition for these elected posts and increase the quality of officeholders.